ITALY LAW AND PRACTICE Contributed by: Giorgio Berlingieri, Alberto Massimo Rossi, Alfredo Lizio, Alberto Torrazza, Simone Gaggero and Filippo Cassola, ADVANT Nctm
liable) if the relevant claim falls within the list of maritime claims set out in Article 1(1) of the 1952 Arrest Convention. 4.4 Unpaid Bunkers A claim for unpaid bunker supply falls within the definition of a maritime claim under Article 1(1) (k) of the 1952 Arrest Convention. As a conse - quence, a bunker supplier can arrest a vessel in connection with unpaid bunkers. In line with the 1952 Arrest Convention, the claimant is the person who alleges that a maritime claim exists in their favour. The actual supplier can therefore try to arrest the vessel, provided that it is in a position to prove its contractual relationship with one of the vessel’s operators. Italian courts also tend to grant the arrest of a vessel in a case where a person other than the owner is liable, provided that the relevant claim falls within the list of maritime claims set out in Article 1(1) of the 1952 Arrest Convention. As a consequence, it would make no practical differ - ence if the bunkers were supplied to a chartered vessel and were ordered by the charterer (and not by the owner). In any event, the courts will be asked to consider the specific factual aspects of each matter to ascertain the contractual relationship, the evi - dence and the circumstances in which the char - terer’s claim originated. This very much depends on the specific contractual clauses of the con - tract of employment of the vessel (timecharter/ bareboat charter), according to which the char - terer is to ask for and pay the bunkers. However, it should be noted that this issue (con - cerning Article 3(4) of the 1952 Arrest Conven - tion) is a well-known controversial point of the 1952 Arrest Convention and there is lack of uni - formity in Italian case law regarding the inter -
pretation and application thereof. Some courts grant the arrest only when the maritime claim is
secured by a maritime lien. 4.5 Arresting a Vessel
In order to arrest a vessel, it is necessary to sub - mit an arrest application to the judicial authority. To this end, a lawyer must be duly authorised by means of a certified power of attorney, which has to be produced and filed. For the purposes of authentication, a distinction must be made between: • powers of attorney issued abroad, which must be authenticated by a notary public and legalised with an apostille (where necessary); and • powers of attorney issued in Italy, which must be authenticated by a notary public or, if signed before a lawyer, by that lawyer. The wet-signed copy of the power of attorney must therefore be attached to the arrest applica - tion upon its filing, although a scanned copy may be filed in urgent cases, so long as the original is filed promptly. Without prejudice to this formality, no further special formalities are required. The court may request a translation of documents written in a foreign language. No security deposit is usually required on behalf of the arresting par - ty, although the Italian Code of Civil Procedure states that courts have the discretion to order the claimant to provide counter security. 4.6 Arresting Bunkers and Freight It is possible to arrest bunkers and freight in Italy, but arresting the bunker is not a frequent occur - rence, as providing evidence of the actual own - ership of the bunker, as well as actually carrying out the arrest, involves certain risks and practical issues. In Italy, it is also possible to proceed with
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